Act I: In a widely read Nov. 15 piece in Atlas Obscura, Priya Krishna reports on “the quest to save Baltimore’s Berger Cookie,” a beloved local food institution. “One of the most essential ingredients in the Berger Cookie is trans fats. Trans fats are what make the chocolate super creamy, prevent the fat and the water in the dough from separating (which would yield an overly crumbly cookie), and keep the cookie stable in both very warm and very cold settings.” However, the Obama administration enacted a federal ban on trans fats — for your own good, you know — which goes into effect next year.
Cookie producer Charlie DeBaufre, interviewed by Krishna, “refers to the past year as ‘frustrating and scary,’ as so many of his trans fat-free experiments have been failures. ‘I have spent $10,000 trying to get this worked out. I am not a big business. I don’t have an R&D Department. I have to shut down production for a few hours, still pay people for labor, and then most of the product gets trashed. It’s tough.’” More background in a piece I wrote for Cato last week.
Act II: Then a twist, reported by Sarah Meehan in the Baltimore Sun Nov. 21: the fudge supplier had managed to replace trans fats months ago and didn’t tell Berger’s. While early attempts to reformulate fudge frosting without trans fats had suffered from various quality defects, the new recipe was much improved to the point where neither consumers nor Berger’s had noticed.
So a happy if unexpected ending, at least for this one company, right? But the regulatory downside — you just knew there had to be one — was that in changing its recipe the fudge supplier had added more sugar, which appears to have boosted the calorie count and might have changed other things reported in the Nutrition Facts box as well. Since Berger’s says it didn’t know about the new formula, one inference might be that for a while it has been shipping cookies with a faulty calorie/nutrition count on the package. Hello to class action woes and, if the FDA is in a bad mood, regulatory liability? [cross-posted from Overlawyered]